Judicial Nominations

  • March 11, 2016
    Guest Post

    by Jonathan C. Carlson, Professor of Law, The University of Iowa College of Law. The views expressed are his own.

    The Constitution directs the President to nominate persons to fill vacancies on federal courts. No one else is authorized to make judicial nominations. Only the President has that power. The Senate’s role is to consider the President’s nomination and decide whether to approve it. If the Senate gives its advice and consent, the President may appoint the nominee to the federal bench.

    This approach to judicial appointments was carefully crafted to create a balance of power between the President and the Senate. The goal, as Alexander Hamilton explained, was to avoid selections based on senators’ “party likings and dislikes, partialities and antipathies, attachments and animosities.”

    Senator Chuck Grassley, chair of the Senate Judiciary Committee, evidently doesn’t care for Alexander Hamilton’s Constitution. When two federal judgeships recently opened in Iowa, Senator Grassley decided that he would himself do both the nominating and the approving of the candidates. To this end, Grassley created his own personal “Judicial Selection Commission.” The chair of the commission, to Grassley’s credit, was a well-respected attorney who, as head of the state bar association, had resisted politicization of state judicial retention elections. But, in contrast to nonpartisan judicial nominating commissions used by senators elsewhere, Senator Grassley’s judicial selection commission was otherwise built to serve “party likings.” Four of the five members were longtime Republican Party activists, and the commission’s candidate-screening process reportedly included “pointed questions” of a partisan-litmus-test variety.

    President Obama duly nominated the persons selected by Grassley. We can be sure, I think, that Grassley made it clear to Obama that no nominee other than Grassley’s nominees would get a fair hearing in the Senate. We can also be sure that moving on Grassley’s selections was the price Obama paid to secure Senate action on a few of Obama’s own judicial nominees.

    But Obama’s gain was minimal. Since February 11, when the second of Grassley’s personal nominees was confirmed, Grassley and the Senate leadership have refused to allow the Senate to vote on any further judicial nominations, even though many nominees have been waiting months for a decision.

  • March 9, 2016
    Guest Post

    by Geoffrey R. Stone, Edward H. Levi, Distinguished Service Professor of Law, The University of Chicago

    * This post was excerpted from Professor Stone’s statement to the Senate Democratic Steering and Outreach Committee.

    In a recent piece in The Washington Post, Miguel Estrada and Benjamin Wittes proclaimed that the only rule that now governs the confirmation process for Supreme Court justices “is the law of the jungle: There are no rules.”

    This is a profoundly misleading – and dangerous – statement. If taken seriously and acted upon, this misconception would undermine 225 years of well-settled tradition and throw the Supreme Court confirmation process into a state of partisan chaos that would damage both the rule of law and the Supreme Court as an institution.

    In fact, when we take a deep breath and actually examine the performance of the Senate over time, it is clear that the Senate defers to the president in these matters as long as the president puts forth nominees who are clearly qualified for the position and who are reasonably moderate in their views. Indeed, this has been the outcome in every single nomination in the last 60 years and, as far as I can discern, in every nomination in American history.

    Moreover, this is true even when the senators disagree with a nominee’s judicial philosophy, even when the Senate is controlled by the opposing party, even when the nominee’s confirmation is likely to have a significant impact on the balance on the Court, and even if the final year of a president’s term. When all is said and done, nominees who are both qualified and moderate are confirmed. Period.

    The “no rules/law of the jungle” assertion is premised primarily on the fact that since the Supreme Court’s 2000 decision in Bush v. Gore, members of the Senate have tended to vote in a more partisan manner than in the past. This is true. In the Roberts, Alito, Sotomayor, and Kagan confirmations, members of the opposing party cast only 26 percent of their votes to confirm, whereas in the five preceding Supreme Court nominations senators from the opposing party cast 73 percent of their votes to confirm.*

    This is, indeed, a troubling trend. It is due largely to the much greater involvement of interest groups in the confirmation process, a phenomenon that raises the political stakes for members of the Senate and gives them an incentive to vote in a more partisan manner. But it is important not to blow this out of proportion. In fact, in the years since 2000 every one of those four nominees was confirmed by the Senate, and they were confirmed with appreciable bipartisan support.

  • February 24, 2016
    Guest Post

    by Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School; former Associate Counsel to the President and chief ethics lawyer, White House Counsel's Office (2005-2007); co-author of the ACS Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations"

    The Constitution is clear.  Presidents have four year terms, Senators have six year terms, and Members of the House of Representatives have two year terms. Their powers and responsibilities are carried out throughout their term in office. We do not take a “time out” from orderly government just because it is an election year.

    Justice Antonin Scalia – one of the greatest jurists in the history of Anglo-American law – did not give an excuse for our Country to descend into chaos simply because he departed from us in an election year.

    In an election year as in every other year it is the responsibility of the President to nominate judges, including Justices of the Supreme Court. It is the responsibility of the Senate to advise the President on nominations and to decide whether to give its consent to particular nominations. This includes holding hearings to determine the suitability of a nominee and voting on nominees just as the Senate votes on legislation, treaties and other matters.

    Or does our government simply grind to a halt because it is an election year? Does the President stop nominating people to vacancies in the judiciary and the executive branch? Does the Senate refuse even to hold hearings? Is no new legislation introduced? Perhaps so, if we assume that the only responsibility of the President and both houses of Congress for an entire year is to collect their paychecks and focus only on the election. 

    And so executive branch regulators shouldn’t do anything significant – or perhaps even show up for work – because it is not clear who the new President will be a year from now? And perhaps the military need not take orders from the Commander in Chief for the next year, because after all we will have a new Commander in Chief a year from now?  

    Everything simply shuts down or worse because it is an election year. This is because we are no longer a great power and those who govern us choose to act as if we were a Banana Republic.

    We know, and the members of the Senate Judiciary Committee know, that the Constitution did not intend for it to be this way. This government functions with two houses of Congress and a President until January 20, 2017 and on that day the government will continue to function with two houses of Congress and a President. Our government has the power, and the responsibility, to enact needed laws, to nominate and confirm judges and other officers to fill vacant positions, to take military action if needed and to declare war if our Country is attacked by an enemy. There is no Election Day – much less election year -- exception to any of this.

  • February 23, 2016
    Guest Post

    by Neil Kinkopf, Professor of Law, Georgia State University College of Law; Professor Kinkopf is the faculty adviser for the ACS Student Chapter at GSU College of Law 

    The C-span video of then-Senator Joe Biden vowing to oppose any hypothetical election year nominee in 1992 calls to mind Casablanca’s Capt. Louis Renault: “I’m shocked … shocked to find” doubletalk in the United States Senate. What would be truly earthshaking would be video evidence of a U.S. senator who did not take diametrically opposed views depending on whether the occupant of the White House was a member of the senator’s political party or the opposing party. This video (along with video of Sen. Schumer vowing obstruction in 2006 and statements from then-Sen. Obama himself) is being waved about as evidence that the Senate may legitimately refuse to perform its constitutional duty to “advise and consent” on any nomination that President Obama might make to fill the Supreme Court vacancy created by Justice Scalia’s death. These arguments should not be taken seriously.

    The individual, isolated statements of Senator Biden, or Schumer, or Obama, or McConnell for that matter, tell us nothing about the real meaning of the Senate’s constitutional advise-and-consent role. More generally, the claim that statements by individual senators should be given any weight in construing the Constitution is profoundly mistaken. Justice Scalia’s own writings on legal interpretation and the use and abuse of legislative history demonstrate quite persuasively the perils of relying on individual statements of legislators: such statements rarely reflect a considered consensus and are often made to promote a political objective, rather than to offer a truly forthright view of the merits of an issue. It is no surprise to learn that Senator Biden, in the wake of his disastrous mismanagement of the Clarence Thomas nomination hearings, was eager to supplicate his political base by making bombastic promises opposing hypothetical election year nominees. 

    This sort of argument is familiar to readers of constitutional law. Its most famous treatment came in the Steel Seizure case, though it dealt with an executive branch political actor rather than a legislator.  The case considered the validity of President Truman’s executive order seizing the nation’s steel mills to avert a labor strike and so to maintain production of munitions during the Korean War. As FDR’s Attorney General, Robert Jackson had written a legal opinion authorizing the president to seize private property under circumstances quite similar to those that prompted Truman’s order. As a Supreme Court Justice, Jackson rejected the position he had taken as Attorney General.  Referring to his legal advice and public statements in support of FDR’s seizures, he wrote “While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself.” 

  • February 19, 2016

    by Nanya Springer

    In the week following the death of Supreme Court Justice Antonin Scalia, confusion and misinformation became widespread with regard to U.S. leaders’ constitutional obligations to fill the vacant seat. To explain what the Constitution requires of President Obama and the U.S. Senate, as well as the ramifications of a prolonged vacancy on the high Court, noted professor and legal expert Erwin Chemerinsky on Wednesday joined ACS for a discussion about what comes next.

    Chemerinsky immediately dispelled the myth that a president should not nominate a Supreme Court justice in an election year by simply reading the text of the Constitution. He explained, “What it says in Article II, Section 2, paragraph 2, is that the president ‘shall appoint Ambassadors, other Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . with the Advice and Consent of the Senate.’ So, the Constitution creates a duty for the president to appoint Supreme Court justices by using the word ‘shall.’ There is no clause in Article II that says, ‘but not in an election year.’” He added that “presidents throughout American history have nominated in an election year, the last year of their term.”

    Chemerinsky provided historical data, noting that "over the entire course of American history, 24 times presidents have nominated individuals in an election year . . . and in 21 of 24 instances, the nominee has been confirmed by the Senate. That’s 87.5 percent. If you look at the entire course of American history, and all presidential nominations to the Supreme Court, 86.9 percent have been conformed. So there’s no statistical difference between nominations in the last year of presidency and nominations that come at any other time of the presidency.”

    Clearly, there are consequences that result from having an eight-member Supreme Court, particularly in the event of a 4-4 split. In that situation, Chemerinsky explained, the Court may choose to reconsider the case and seek a resolution on narrow or procedural grounds, put the case over for reargument the next term, or affirm the lower court’s decision without opinion. The latter situation would create complications in the presence of a circuit split because “the same federal law will have varying meanings in different parts of the country.”

    To listen to the full discussion, click here.